Mirvac Projects Pty Ltd v Ku-Ring-Gai Municipal Council

[2001] NSWLEC 103

Land and Environment Court

of New South Wales

CITATION:

Mirvac Projects Pty Ltd v Ku-Ring-Gai Municipal Council [2001] NSWLEC 103

PARTIES:

APPLICANT:
Mirvac Projects Pty Ltd

RESPONDENT:
Ku-Ring-Gai Municipal Council

FILE NUMBER(S):

11173 of 2000

CORAM:

Bignold J

KEY ISSUES:

Practice & Procedure :- Motion by developer for leave to rely upon amended development plans

LEGISLATION CITED:

Land and Environment Court Rules 1996, Pt 13 r 16(b1)

CASES CITED:

DATES OF HEARING:

1 May 2001

EX TEMPORE
JUDGMENT DATE :

05/01/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Ms J Ware, Solicitor
SOLICITORS
Coudert Brothers

RESPONDENT:
Ms K O'Hagan, Solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND

Matter No. 11173 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

1 May 2001

MIRVAC PROJECTS PTY LTD

Applicant

v

KU-RING-GAI COUNCIL

Respondent

JUDGMENT

Bignold J:

1. This is Motion for leave pursuant to the Rules of Court Pt 13 r 16 par b(1) by the Applicant to a pending Class 1 appeal which has been fixed for hearing on 28 - 31 May 2001 to rely upon amended plans of the development proposal initiated by the Applicant. The Council does not consent to the Applicant’s reliance upon the amended plans which are detailed in the affidavit sworn by Jennifer Ware dated 27 April 2001, hence the need for the Motion to the Court for leave. The Council does not only not consent, but opposes the grant of leave.

2. The reasons for the Council’s opposition are to be gleaned in part from the contents of the affidavit of Brian Banning, sworn 30 April 2001. In that affidavit, Mr Banning in par 8 provides a synopsis of the nature of the amendments sought and his understanding of them, but he does not express any opinion as to the substantive nature of the amendment proposed. The only evidence of such an opinion is that provided in Ms Ware’s affidavit and although it is not common for the Court to receive evidence from practising Solicitors as to whether a development plan amendment is minor or not, Ms Ware has considerable experience in these types of matters that come before the Court and her evidence has not been challenged and I am content to accept it. She describes the amendments as “minor in nature” having been created by the Applicant’s response to the Council’s filed Statement of Issues. It is true, as the Council’s Solicitor has pointed out, that the statement of issues was filed in Court on 7 February 2001—at the same time as the case was listed (specially fixed for hearing at the end of May 2001)—and it is true that the Motion for leave to rely upon the amended plans comes late in the overall history of the litigation. However, I am satisfied that the amendments are truly minor in nature and do arise from the Applicant’s response to some of the issues raised by the Council.

3. That brings me to the other and only basis really pressed in Mr Banning’s affidavit for opposing the Motion namely that with the hearing date fixed for the end of the month, the Council, being bound by its Notifications Policy, will be hard pressed to prepare its case. It is common ground that the Notifications Policy requires re-notification of any amendment to a plan, whether that amendment be minor or significant. The Policy does not distinguish between different types of amendment—it simply operates in respect of an “amendment plan” lodged before the application has been determined.

4. It is this latter matter that is somewhat significant in the overall evaluation of the case because the development application was lodged with the Council in October last year but has not yet been determined by the Council, and it is unlikely that it is going to be determined by the Council before the fixed hearing dates. In other words, the appeal is likely to proceed on the footing of the Council’s deemed refusal and the Council appears at the present time unlikely to formally determine the application.

5. There is no suggestion in Mr Banning’s affidavit that the Council was content to determine the development application either before it received notice of the amendments (which were conveyed to the Council’s Solicitor by letter of 24 April this year) or after it received that notice. There is sufficient time, in my judgment, for the Policy requiring re-notification to be complied with and although it is true, as the Council’s Solicitor indicates, that the residents who may be opposed to the proposal may not have a great deal of time to voice their opposition, the fact remains that the amendments are, on the face of it, minor in nature and the Court has been informed that in the original notification of the proposal (which is quite a significant SEPP 5 development comprising some 13 dwellings) only five objections were received, it remains to be seen whether the amendment plans once re-notified will generate more objections or will lead to a reduction in the existing objections. After all, as the Court has been informed, the purpose and purport of the amendments is to relieve against some of the issues raised by the Council in opposition.

6. In the circumstances, I am satisfied that though coming late on the scene, the amendments, by virtue of their nature (being truly minor and in response to issues raised by the Council) in a case where the Council has not formally determined the development application (though it was lodged with the Council more than six months ago) will have adequate opportunity to prepare its case, but to vouchsafe that result, I would direct that the Rules of Court and the Practice Direction requiring the Council to file its expert reports in the case be extended by a further period of seven days. The Applicant will, of course, be required to comply with the Rules of Court and Practice Direction and in this case the Council will have the benefit of the Applicant’s expert reports for seven days before the Council is bound to file its expert reports.

7. For all the foregoing reasons therefore, I grant the relief claimed in par 1 of the Notice of Motion and I direct that the requirements for filing of expert reports by the Council set out in the Rules of Court and the Court’s Practice Direction be relaxed so that the Council has an additional seven days to comply with its obligations in that behalf.